Let the Sun Set on PATRIOT

Section 214: "Pen Register and Trap and Trace Authority Under FISA"

What PATRIOT 214 Does

Section 214 of the USA PATRIOT Act significantly expands the FBI's electronic surveillance powers under the Foreign Intelligence Surveillance Act (FISA), as well as lowering the standards under which the secret FISA court can authorize the FBI to spy on your phone and Internet communications. In particular, Section 214 makes it easier for the FBI to install "pen registers" and "trap-and-trace devices" (collectively, "pen-traps") in order to monitor the communications of citizens who are not suspected of any terrorism or espionage activities.

How PATRIOT 214 Changed the Law

Before the PATRIOT Act, the government could only get a FISA pen-trap order when the communications to be monitored were likely to be either (1) those of an international terrorist or spy or (2) those of a foreign power or its agents relating to the criminal activities of an international terrorist or spy. PATRIOT 214 threw out this requirement. Now, any innocent person's communications can be tapped with a pen-trap so long as it is done "for" an intelligence investigation. The FBI doesn't have to demonstrate to the FISA court that the communications are relevant to its investigation. Nor can the court deny the FBI's request; if the FBI certifies the tap is "for" such an investigation, the FISA court must issue the order.

That Section 214 lowered the standard for FISA pen-traps is even more disturbing in light of the fact that PATRIOT Section 216 expanded their reach. Unlike regular wiretaps issued under much stricter standards, pen-traps aren't supposed to collect the actual content of your communications, such as what you say on the telephone. Instead, they capture "non-content" information about your communications, such as the telephone numbers that you dial or the numbers of people who call you.

Before PATRIOT, the statute defined pen registers and trap-and-trace devices solely in the context of telephone communications. But Section 216, which does not sunset, expanded the pen-trap definition to include devices that monitor Internet communications, without clarifying what portions of Internet communications are "content," requiring a full wiretap order, versus "non-content," which can be legally acquired only with a pen-trap order. At the very least, this change means that the government can use a pen-trap to see the email addresses of people you’re sending email to and the addresses of people who send email to you, along with the timestamp and size in bytes of each email. The FBI can monitor the IP addresses of all the computers you interact with over the Internet, or capture the IP addresses of every person visiting a particular website. Under the vaguely written statute, it may even be able to capture the URL of every web page that you read, although the FBI refuses to confirm or deny whether it has done so.

Why PATRIOT 214 Should Sunset

The FISA Court operates in total secrecy, hearing argument only from the Department of Justice. It does not publish any details about the surveillance it authorizes, and doesn't publish any of its opinions. As a result, there's no way for citizens to know how often FISA pen-traps are authorized, whether and to what extent they're being used to spy on Internet communications, or how the court interprets the distinction between communications content and non-content when it comes to Internet communications. This secrecy, along with FISA's lower standards for authorizing surveillance compared to those required in regular criminal cases, was originally premised on the assumption that the Executive Branch should be given extra leeway when investigating foreign threats to national security. Yet PATRIOT Section 214 completely eliminated the requirement that the target of the surveillance must actually be a foreign spy or international terrorist. Such unrestrained power to engage in secret surveillance against innocent citizens is unjustified and antithetical to a free society, representing a serious threat to privacy and freedom of expression on the Internet.

Conclusion

EFF strongly opposes renewal of Section 214, and urges you to do the same. Rather than renewing or expanding PATRIOT powers, Congress should conduct an in-depth review of how PATRIOT has been used -- or abused -- since being passed in October 2001. We encourage you to visit EFF's Action Center today to let your representatives know that when it comes to PATRIOT, they should review it, not renew it.